Fourth Waiver Searches of Vehicles


Upon discovering that a passenger of a vehicle is subject to a waiver of his Fourth Amendment Search and Seizure rights, an officer may search those areas of a vehicle where it is reasonable to believe, under the circumstances, that the Fourth waiver subject may have hidden contraband, while taking into consideration the privacy interests of the driver/owner of the vehicle. 


Defendant Brandon James Claypool was observed by police driving his Honda Accord in a high crime/gang area (unknown what time of day or night) with two passengers later identified as Malcolm Clay, sitting in the front passenger seat, and Carlos Olivia, in the rear seat on the passenger’s side.  Observing the front passengers in the car to “be leaned back” as it passed the police car going in the opposite direction, the officers did a U-turn and followed the Honda.  No observations were made, however, of anything being exchanged between the front and rear passengers.  The Honda did an “abrupt turn” onto a side street and stopped in front of a residential driveway.  Blocking the driveway being a violation of V.C. § 22500(e)(1), the officers pulled up behind it and stopped.  Upon contacting the vehicle’s occupants, it was noted that defendant (the driver) had the car keys (along with a cellphone and a wallet) in his lap.  The Honda’s engine had been turned off.  Observed in plain sight in the back seat near Olivia was an open bottle of cognac which Olivia acknowledged was his.  Olivia also told the officers that he was on parole (thus subject to warrantless/suspicionless searches).  Deciding to do a parole search of the car, all three subjects were asked to exit the vehicle.  Defendant was told to put his keys on the dashboard as he got out of the car.  Clay (the front passenger) appeared to be visibly sweating and nervous.  When asked if there was a gun in the car, one of the officers testified that he “thought” Clay responded, “I don't know.” Retrieving the car keys from the dashboard, the officers used them to open the locked glovebox.  A loaded pistol was found therein.  Defendant was charged in state court with a number of firearms and ammunition-related offenses.  His motion to suppress the evidence was denied by the preliminary hearing magistrate, and then again by the trial court.  Defendant appealed.